In R. v. O'Connor, the Supreme Court of Canada held that once the judge has made a preliminary ruling of "likely relevance," in relation to documents that are subject to third party privacy interests, the next step is that "the judge should examine the records." This seems anomalous. Get Help. It would be obvious to anyone that the prosecution would resist compliance with such a far-fetched demand. Vetting or editing the disclosure brief is a joint responsibility of the police and the Crown. During your first court date, you may get disclosure from the Crown. This may be the answer for the defence counsel who is unable to learn to type and requires a paper copy to note up. The model that has emerged, and that we support, has four important features: Each of these four points raises its own issues, including some important legal issues, which are discussed below together with our recommendations. It is clear that disclosure obligations can be satisfied by an opportunity to inspect. When we suggested this practical joint approach to vetting the disclosure brief, all participants agreed and it was not the subject of any controversy. As noted, these requests test the outer limits of Stinchcombe "relevance", they may also raise third party confidentiality issues and they can cause lengthy delays and complex motions before the trial court. If the above six recommendations are adopted and implemented, we believe that they will substantially speed up delivery of the initial disclosure brief to the defence, shortly after charges are laid. The defence sought "all disciplinary records, internal discipline records, documentation from personnel files, including all information pertaining to misconduct activities of each police officer and government agent including all U.S.A.T.F. Because these requests for materials outside the investigative file are at the outer margins of even the "low" Stinchcombe relevance standard, we believe that there is an onus on the defence to particularize and explain the relevance of such requests. In addition, it creates a very poor record for appellate review. As Esson J.A. The Committee's report recommended, inter alia, that the Solicitor General utilize the powers in s. 3(2)j of the Ontario Police Services Act to "issue directives and guidelines" requiring all police forces in Ontario to comply with the Attorney General's new and detailed Directive on Disclosure. The Crown Screening form is also called a Charge Screening form. Of course, as with all technological developments, we are quite sure that the Adobe 8 search software will eventually be overtaken by something newer and better. The court must also rule as to whether any privilege exists. However, the court said that it does not follow from the fact that it may be necessary to create hard copies for some, but frequently not all of the materials in electronic format, that disclosure in that format is insufficient to satisfy the constitutional common law obligations of the Crown to provide disclosure. In the Committee's view, however, a different situation prevails with respect to subsequent copies of material needed for disclosure purposes. (function(){ 16 On the other hand, Crown counsel in a large complex case, working out of a major urban office like the "Guns and Gangs Unit" where the police and Crown meet regularly and agree on the size, focus and theory of the case and collaborate closely on the preparation of the disclosure brief, all with a view to producing a viable prosecution, would likely not satisfy the Regan requirement of "Crown objectivity and the separation of the Crown from police functions." 33. It is beneficial to the administration of justice, regardless of whether it is required by law. For example, counsel's demand for "documentation from personnel files" of all Canadian and American police officers involved in the investigation can only be described as frivolous and abusive. As Sopinka J. put it in Chaplin, the policy purpose for placing this onus on the defence is "to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming disclosure requests...Fishing expeditions and conjecture must be separated from legitimate requests for disclosure." Resources … Fourth, and last, pre-charge involvement of the Crown speeds up the preparation of the brief and allows for timely disclosure to the defence, soon after charges are laid. (function() { Police investigative procedures are now the subject of pre-trial motions to determine whether there has been a Charter violation, whether evidence will be admitted under the new "principled approach" and whether a statutory process, such as a wiretap authorization or search warrant, has been properly followed. If sensitive rulings on privilege claims can be made without examining each document, as Ryan holds, then surely disclosure motions should not engage the judge in a "time-consuming, expensive" examination of large numbers of documents. Again, experience in the United Kingdom is instructive on this point as the Court of Appeal recently issued a Disclosure Protocol which states: 47. 38 Nevertheless, it must be recognized that these kinds of materials generally have limited uses and they challenge the outer edges of Stinchcombe relevance. There is no guarantee that it will be available at your first appearance or that you will get all of it. In any event, we concur with the views of Sinclair J. in Piaskowski, as follows: 26. var _p = ("http:" == document.location.protocol ? It’s easier than you think. 13 In this regard, the Court referred with approval to the earlier decision of Binnie J. in Regan where he described the independent role of the Crown in these terms: 14. The PRCRA also permits the disclosure of an outstanding criminal charge, except in a level one Criminal Record Check. If there is an onus on the Crown to make timely disclosure, then there must be an onus on the defence to advise the Crown of any further disclosure requests in a timely way. To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. 9, 10 and 11 of the Evidence Act are particularly difficult to apply without a transcript and a great deal of court time is wasted when cross-examination is attempted with an audio or video tape. The materials beyond that file are not presumptively relevant unless the defence establishes a link. The solution to this problem does not necessarily require electronic disclosure. To ensure that efficient disclosure practices are instituted and maintained across the province, police and prosecution co-operation and co-ordination must improve. Utter threats and mischief (property damage) cases are also often relatively harmless. Each edit should be coded in the margins to explain its basis to the defence. In this way, realistic and prompt administrative timelines can be established for initial disclosure. But I would not lay down an absolute rule that as a matter of law, the judge must personally inspect every document at issue in every case. })(); As a matter of practical common sense, we believe that the four areas of editing are the joint responsibility of both the police and the Crown. 31 It is therefore essential that the relevant intercepts be transcribed. Fundamentally, disclosure to an accused person is the duty of the Crown. This allows the Crown and the police to consult as to the size and focus of the case, before any charges are laid, such that a manageable prosecution is more likely to emerge. There is very clear evidence that, without active judicial oversight and management, the handling of disclosure issues ... can cause delays and adjournments. If our recommendation is accepted, and standardized electronic disclosure based on the "Major Case Management" format becomes the norm in large cases, this will have implications for the bar. The police should then utilize civilian employees to transcribe these particular tape recordings so that the transcripts are included in the disclosure brief. Guide for Accused Persons in Criminal Trials. The inability of the Crown to make such disclosure may require a Crown stay or withdraw the charges or request a judicial stay of proceedings. We wish to briefly address three of these issues: first, who is responsible for vetting or editing the disclosure brief; second, who is responsible for transcribing the relevant taped interviews and intercepts; and third, who should pay for disclosure. The police and prosecutors who developed the "Major Case Management" model deserve a great deal of credit and we commend them. On the defence side, the most common problems with disclosure practices and procedures all tend to revolve around requests for materials that are not part of the investigation and that are at the outer edges of relevance. A more efficient out of court procedure is available and it should be utilized. Accordingly, the necessity of transcribing the relevant witness interviews has become a significant new cost and source of delay. As with the police, the role of the Crown in deciding whether to prosecute is steeped in longstanding constitutional precepts. Well-resourced offices like the "Guns and Gangs Unit" in Toronto follow this "best practice" at the present time and have found that it works well. Once again, these recommendations need to be entrenched in a Police Services Act directive so that there is no uncertainty as to the budgetary requirements of the police and Crown and so that consistent arrangements exist for all police services and all Crown offices. The Crown should pay for copies of the brief to be provided to all co-accused for the purpose of disclosure. It would obviously be wasteful to transcribe all tape-recorded interviews and intercepts. If there is a reasonable likelihood of conviction and it would be in the public interest to proceed, consider laying charges Footnote 156 where such evidence exists. They must be particularized in order to properly identify the files/materials in question and to explain how the files/materials could assist the defence, as required by the onus placed on the defence in. This makes a great deal more sense than having volumes of paper that they may never need. This would put an end to the time that is presently lost due to defence follow-up requests for the investigative materials that are routinely left out of initial disclosure by some police forces or Crown offices or that are left out in some individual cases. Stinchcombe is clear in this regard and so the Crown must review the police proposals for vetting and then make final decisions. To the extent that counsel are comfortable working with electronic exhibits, and to the extent that the courts are equipped to receive and project electronic exhibits, this would greatly expedite the process of entering exhibits at trial, especially in jury trials. Furthermore, when electronic tools for editing are available, the time and costs incurred by blacking out and photocopying the edited brief do not become an issue. The police should do an initial edit of the brief, electronically highlighting or shading the proposed edits, and the Crown must then review the brief and make final decisions. In summary then, we believe the proper approach is to place a strong onus on the Crown to comprehensively disclose the investigative file (in Recommendation 3) but to place the onus on the defence to meet its Chaplin burden in relation to materials outside the investigative file. while prosecuting a criminal case before the General Sessions of the Peace, the County Court Judge's Criminal Court, High Court of Ontario, or Supreme Court. 1 Furthermore, failure to comply with this right is closely related to the risk of miscarriages of justice. [CDATA[*/ Such separation of power, by inserting a level of independent review between the investigation and any prosecution that may ensue, also helps to ensure that both investigations and prosecutions are conducted more thoroughly and thus more fairly. In Stinchcombe the material being sought was witness statements that were clearly part of the investigative file. 24. © 2021 CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario).. What happens on my first court date for a criminal offence? We have seen a number of instances where the request is expressed in broad unqualified terms seeking whole categories of documents. If the Crown gives you disclosure and it seems like things are missing, you should let the court know. Collaboration does not mean charge approval nor does it mean that the Crown takes over police investigative functions. McLachlin J., as she then was, stated: 49. Disclosure of all relevant information is vital to ensuring that the trial process is fair to all those accused of criminal offences. The pre-charge advice Crown will already know the case well and, therefore, conducting the bail hearing, ensuring that the disclosure brief is completed in a timely way, providing continuity of advice to the prosecution team and supporting the lead prosecutor in other ways are all functions that can properly and effectively be taken on at the post-charge stage. In R. v. Girimonte, the Court of Appeal dealt with this kind of request. Some cases and some jurisdictions exhibit sound practices whereas others exhibit very poor practices. If a lawyer so wishes to restrict himself or herself that is his or her choice; but that choice ought not to restrict opposing counsel, even if it is counsel for the Crown, particularly in the circumstances of a complex, voluminous piece of litigation, whether criminal or civil. However, this does not mean that the pre-charge advice Crown can have no involvement at the post-charge stages. 12. The trial brief is completely separate and only emerges as a result of counsel's "work product". For example, Crown counsel in a smaller jurisdiction, who merely gives legal advice on a search warrant or wiretap or some other investigative technique, would still remain sufficiently independent to screen the charges at the end of the police investigation. A patchwork of inconsistent arrangements exists across the province, although it appears that the scheme of the Martin Report is generally followed. In particular, the judge should fix a date by which all defence applications for specific disclosure must be made. There is no point in the police pursuing a sprawling unfocused investigation, with hundreds of targets, if it will lead to a case that cannot be prosecuted because there are too many accused and overwhelming disclosure problems. The electronic investigative file is stored on an external hard drive and, after appropriate editing, a copy of the external hard drive is made for disclosure to the defence. It could be taken away by the defence if bail is granted at any point. Items typically found in disclosure include, but are not limited to: Police notes; Witness statements This is a poor use of judicial resources not only because it is cumbersome and time-consuming, involving argument and adjudication over each document, but because more efficient alternatives exist. Disclosure is the information that the police and the Crown have about your case. 2 For these reasons, the duty to make full disclosure is one of the most important obligations in the criminal justice system. Crown counsel are, as discussed above, independent of the police in the conduct of prosecutions. 51 We were advised that this form of disclosure, by way of inspection of the requested file or files, has often been used successfully in Ontario and elsewhere. It is not intended to be used as legal advice for a specific legal problem. What matters is that core prosecutorial discretions, like those enumerated in Krieger, be exercised by fresh and independent Crown counsel. Its policy on, Available Online: http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/p4.html, The impetus to develop a standard "Major Case Management" investigative brief was, in part, due to the, The Federal Prosecution Service Deskbook policy on, Recommendations 22 and 23, Online: http://www.justice.gc.ca/eng/esc-cde/ecc-epd.pdf. The judge seized with pre-trial motions (discussed below in Chapter 4) should order that all disclosure disputes must either be resolved by cooperative consultation between the parties or must be brought on for a ruling in court in a timely way. C.A.). But you should ask for it. Assuming that a defence motion seeking further disclosure is brought on in a timely way and is supported by a particularized notice with supporting materials, difficult questions still remain as to the extent of the court hearing. Instructing counsel to obtain disclosure by an opportunity to inspect is a particularly useful and appropriate tool when dealing with materials on the outer edges of Stinchcombe relevance. In order to get your charges dropped, there would have to be a fatal error in the province's disclosure or evidence. This appeal concerns the limits of Crown disclosure obligations in criminal prosecutions, flowing from this court's decision in R. v. Stinchcombe, and amplifies the procedural structure of disclosure obligations as articulated in Stinchcombe, and subsequent case law. We acknowledge that our recommendation on this point may have resource implications for smaller offices where only one or two Crown counsel with sufficient skill and experience may be available to both advise the police at the investigative stage of a long complex case and conduct any subsequent prosecution. 36. var _gaq = _gaq || []; 35 The Ministry of the Attorney General's "Up Front Justice Project" has worked hard to implement this recommendation and we commend their efforts. In this way there will be no delays caused by defence follow-up requests asking the Crown to explain the basis for the editing. Of course, if these administrative goals for initial disclosure in large complex cases are to be consistent across the province, as we believe they should be, the standards need to be fixed by directive under both the Police Services Act and the Crown Policy Manual so that police and Crown disclosure timelines are coordinated. The accused's right to disclosure of all relevant and non-privileged information in the possession of the Crown is guaranteed by s. 7 of the Charter. Drivers on an Ontario learner’s permit (G1, G2, M1, M2), who get a Careless Driving ticket, and plead guilty or get convicted in court, will be subject to the same penalties as other drivers. We do not believe that any responsible counsel today would insist that he/she is unwilling to accept disclosure in this form. As the investigation continues, at the post-charge stage, new investigative material can be added to the appropriate file folders and new hard drives can then be produced and disclosed to the defence. This allows the Crown and the police to consult as to the size and focus of the case, before any charges are laid, such that a manageable prosecution is more likely to emerge. A peace bond binds the accused person to abide by a number of conditions. 53 We recommend this approach in long complex cases where there will generally be large quantities of "marginal" materials that could possibly be relevant. We note that these kinds of materials will generally be inadmissible in evidence, as they often run afoul of the collateral facts rule. 30 However, it is difficult for the Crown and defence counsel to quickly review a tape-recorded statement and it is even more difficult to use it in court to examine or cross-examine a witness or to refresh memory. Disclosure of Non-Conviction Records. The police have increasingly turned to Crown counsel for pre-charge legal advice in order to navigate these difficult waters. Not surprisingly, the studies have found that the same common sense proposition applies to the underlying causes of trial delay. We caution that the court must make an initial ruling as to whether the broad class of documents meets the Stinchcombe or Chaplin tests for disclosure. Sopinka J. It must be recognized that this recommendation has cost implications for police services and there must be sufficient budgetary allocations made to permit the hiring of civilian employees to do the transcribing. You may have to go to court a few times to get all of your disclosure. As a result, modern police investigations in large complex cases, such as those carried out by Ontario's new "Guns and Gangs Unit" and the "Combined Forces Special Enforcement Unit", may now include pre-charge Crown consultations and advice as to the theory, focus and size of the case, all with a view to creating a manageable case that can be effectively prosecuted. It is counsel who can best make this determination, quickly and efficiently, and so the onus should be on counsel to inspect the potentially relevant files and request copies of only those documents that actually are helpful, rather than ordering the Crown to photocopy thousands of documents, most of which will not be helpful. We recommend that police services and Crown offices set standard coordinated administrative goals for delivery of the brief to the Crown and then to the defence, and issue directives to this effect. The Crown must provide comprehensive disclosure of the investigative file, as Recommendation 3 above provides, because the investigative file is presumptively relevant. This online guide draws on the Canadian Civil Liberties Association's insightful and concerning report Presumption of Guilt?The Disclosure of Non-Conviction Records in Police Background Checks, (Toronto: Canadian Civil Liberties Association, May 2012).We encourage any readers interested in learning more about this topic to consult with this report. 's admonition in Stinchcombe should be foremost in the minds of both counsel, whenever disclosure is being discussed: 43. Common sense dictates that the police would use their discretion to differentiate between minor and serious cases, but the system does not work this way. A directive should be issued under the Police Services Act to the effect that the "Major Case Management" model of electronic disclosure, with Adobe 8 search software, should be utilized as the standard Crown brief in all long complex cases. The standard "Major Case Management Brief", as we understand it, contains all materials relevant to the investigation, including those mentioned above, and it therefore complies with the "quite low". The duty of a Crown Attorney to respect his or her 'Minister of Justice' obligations of objectivity and independence is no less fundamental. 17. Once again, no standard "best practice" has emerged to prevent these delays. The great expenditures of time and money that used to be devoted to photocopying are now a thing of the past in these large complex cases. It is essential that the police engage on these subjects and advise the Crown as to what should be edited. However, the police remain independent and it is the police who must determine, at the end of the investigation, whether to swear an Information under s. 504 of the Criminal Code. (3d) 33 at 40-41 (Ont. Finally, we note that the adoption of electronic disclosure in long complex cases will have significant implications for correctional authorities. That procedure was obviously more favourable to the defence than if he [the trial judge] had examined the documents privately. It must be remembered that the disclosure brief encompasses a broad array of materials, much of which counsel will never use at trial. We note that the police/Crown relationship has evolved in a similar way in the United Kingdom. They can be referred to as "marginal" in many cases, to adopt the terminology of Dixon. At a minimum, the Court must rule on whether the defence has met its Chaplin burden and must rule on any claims of privilege raised by the Crown. All of the leading studies of trial delay have noted that establishing time limits for each step in the judicial process is one of the most effective ways of reducing delays and improving efficiency. The City of Toronto Prosecutor’s Office will only provide information in disclosure that relates to the charge and that is in the Office’s possession. Video-taping and audio-taping of witness interviews has now become widespread, especially in large cases. ... the independence of the Attorney General, and thus his or her agents, in deciding whether a prosecution is in the public interest and, therefore, should proceed, must be accorded due recognition, because of its important role in preventing misuse of government power, and because of the importance in ensuring that fatally flawed prosecutions do not proceed. We understand that many police services have already done this and the directives state that timely initial disclosure by the target date is an important police duty. But once the Court has determined that the files sought by the defence exist and that they could assist the defence in the Chaplin sense, and the Court has further ruled that the files are not subject to any claim of privilege raised by the Crown, we do not recommend that the Court become involved in a time-consuming document by document examination of the files. You can't move forward to the next step in the court process without your disclosure. The use of undertakings when disclosing sensitive documents was first recommended by the Supreme Court of Canada in the Ryan case. Get your Crown Screening form. An experienced criminal defense attorney is your best hope of getting your charges dismissed. 7 It is simply not feasible in the modern era to expect the police and Crown to work in entirely separate silos, as they once did. No reasonable person would suggest that personnel records of all police officers involved in a criminal investigation must be turned over to the defence at the outset of a prosecution. If the police are continuously building the brief in electronic form as the investigation proceeds, there is only minimal additional cost involved in downloading that brief onto an external hard drive and then providing it to the Crown. To request disclosure, please complete the Disclosure Form and deliver it to the appropriate City Prosecutors’ Office. Under section 10 (a) and 10 (b) the Charter of Rights and Freedoms, an individual has the right on arrest or detention “to be informed promptly of the reasons” and, “to retain and instruct counsel without delay and to be informed of that right”. Doherty J.A., speaking for the Court, described the request as abusive: 41. All of the parties with whom we consulted agreed, at a minimum, that it is a "best practice" in a case such as the latter example above, to assign a fresh Crown to lead any prosecution and determine independently whether to prosecute and who to prosecute. 54. Six years later, another broad-based committee made similar recommendations. It simply requires a directive under s. 3(2)j of the Police Services Act setting out an organized and comprehensive format for the Crown brief. Our analysis of the leading authorities in this area, as well as our four case studies, confirm that disclosure disputes have plagued these cases and are a serious cause of delay and inefficiency. Counsel will only be relieved of the undertaking in relation to any particular document upon obtaining the Crown's agreement to provide a copy of the document or upon obtaining a further order of the court. To be used against you and the Crown consents the law of disclosure and, more importantly, were. 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